1

Certiorari Denied, November 3, 2011, No. 33,259

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-118

Filing Date: September 26, 2011

Docket No. 30,386

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v. 

SHIRLEY REDHOUSE,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Thomas J. Hynes, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Francine A. Chavez, Assistant Attorney General

Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender

B. Douglas Wood III, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

GARCIA, Judge.

{1} The underlying issue in this case is whether Defendant Shirley Redhouse’s

uncounseled 1972 misdemeanor conviction for driving while intoxicated (DWI) could be

used to enhance Defendant’s current DWI conviction when she was not sentenced to any

incarceration for the 1972 offense. The State asked the district court to reconsider its ruling
2

on this issue as a legal error six days after Defendant’s judgment and sentence was filed. We

recognize that “[s]entencing may violate concepts of double jeopardy if not within

objectively reasonable expectations of finality.” March v. State, 109 N.M. 110, 111, 782

P.2d 82, 83 (1989). This case requires us to address and distinguish our decision in State v.

Diaz, 2007-NMCA-026, 141 N.M. 223, 153 P.3d 57. Upon reconsideration, the district

court amended Defendant’s sentence based upon legal error regarding the 1972 conviction.

Under the facts in this case, Defendant did not have a reasonable expectation of finality in

her sentence because the State moved for reconsideration of the district court’s ruling on the

validity of the prior 1972 DWI conviction within thirty days of the district court’s entry of

a judgment and sentence. We hold that the district court did not violate Defendant’s right

to be free from double jeopardy when it re-examined the validity of Defendant’s 1972 DWI

conviction and amended Defendant’s sentence which had been based upon a legal error

regarding the prior 1972 conviction. We also hold that the district court did not err in

determining that the 1972 conviction was valid for purposes of sentence enhancement. We

affirm.

BACKGROUND

{2} On November 30, 2009, Defendant pleaded guilty to aggravated DWI, contrary to

NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). Sentencing occurred the

same day. The State submitted four prior DWI convictions in order to enhance Defendant’s

current DWI conviction to a fifth and make the current offense a felony conviction.

Defendant contested two of the prior DWI convictions, one from 1972 and one from 1973.

The district court initially determined that neither of these two prior convictions could be

used for enhancement purposes because neither showed that Defendant had been represented

by counsel, yet the court determined that Defendant had been punished by imprisonment for

both prior convictions. At the sentencing hearing, the district court asked the State if it

wanted further time to contest its ruling regarding prior convictions, and the State declined.

Based upon the district court’s determination that Defendant had two prior DWI convictions,

Defendant was sentenced to 364 days of incarceration. The district court gave Defendant

credit for the 109 days served prior to sentencing, suspended the remaining 255 days of the

sentence, and placed Defendant on unsupervised probation for 255 days. The judgment and

sentence order was filed on December 3, 2009.

{3} On December 9, 2009, the State filed a motion for reconsideration arguing that the

district court made a mistake of law when it concluded that the DWI convictions from 1972

and 1973 could not be used for enhancement purposes. Four hearings scheduled followed:

January 20, 2010; February 22, 2010; March 10, 2010; and April 19, 2010. The State

consequently argued that the district court had erred as a matter of law regarding the use of

Defendant’s 1972 and 1973 convictions as prior DWI convictions for sentencing purposes.

The State did not present any new evidence or attempt to supplement the prior evidence

regarding Defendant’s 1972 and 1973 convictions. After the first hearing on January 20,

2010, the district court ruled that it had erred as a matter of law concerning the 1972

conviction. Under this ruling, the 1972 conviction counted as a prior DWI conviction even
4

though there was no waiver of counsel because Defendant had not been sentenced to jail for

the conviction. Upon Defendant’s oral motion for reconsideration on February 22, 2010, the

district court held two subsequent hearings and confirmed its ruling that the 1972 conviction

could be used for enhancement purposes. However, the district court remained firm that the

1973 conviction could not be used as a prior DWI conviction.

{4} Defendant’s judgment and sentence was amended to reflect that Defendant was

convicted of a fourth DWI, which statutorily required her to serve at least six months in jail.

§ 66-8-102(G). Thus, Defendant was required to serve an additional seventy-one days in

jail. Defendant appeals the amendment to her judgment and sentence. Defendant argues that

she had an expectation of finality in the sentence imposed on December 3, 2009, prior to any

reconsideration and subsequent amendment by the district court resulting in a double

jeopardy violation. She further argues that a penalty of imprisonment was imposed under

her 1972 DWI conviction and thus the district court erred in determining that the 1972

conviction was valid for the purposes of enhancement.

DISCUSSION

Standard of Review

{5} We review Defendant’s contention that modification of her sentence violated her

constitutional guarantee against double jeopardy under a de novo standard of review. State

v. Lopez, 2008-NMCA-002, ¶ 12, 143 N.M. 274, 175 P.3d 942. Similarly, we review issues

of statutory and constitutional interpretation regarding the validity of Defendant’s prior

conviction de novo. See State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489

(stating that appellate courts “review issues of statutory and constitutional interpretation de

novo”). However, to the extent that factual issues are intertwined with issues of

constitutional and statutory interpretation, we defer to the district court’s factual findings as

long as they are supported by substantial evidence. See State v. Rodriguez,

2006-NMSC-018, ¶ 3,139 N.M. 450, 134 P.3d 737.

Defendant’s Right to Finality in Sentencing Was Not Violated When the District Court

Resentenced Her

{6} Defendant argues that the district court erred by reconsidering and resentencing her

to an increased sentence because she had already substantially completed her sentence.

Specifically, Defendant contends that the district court’s modification of her sentence

violated her right to finality in her sentence, implicating her constitutional guarantee against

double jeopardy.

{7} It is well established that “a [district] court generally cannot increase a valid sentence

once a defendant begins serving that sentence.” State v. Porras, 1999-NMCA-016, ¶ 7, 126

N.M. 628, 973 P.2d 880. However, there is an exception to this rule of finality when the

original sentence is illegal or improper. Id. Our appellate courts have determined that an
5

original sentence is illegal if habitual offender enhancements based on prior convictions have

not been included. See, e.g., State v. Freed, 1996-NMCA-044, ¶ 9, 121 N.M. 569, 915 P.2d

325. Thus, a habitual offender’s sentence may be enhanced at any time prior to the

expiration of the underlying sentence. Porras, 1999-NMCA-016, ¶ 8. In Diaz, this Court

determined that enhancement pursuant to the DWI sentencing statute is different from

habitual offender enhancement pursuant to NMSA 1978, Section 31-18-19 (1977). Diaz,

2007-NMCA-026, ¶ 12-13. In Diaz this Court concluded that the prosecution had the burden

of presenting proof of prior DWI convictions for sentencing purposes at the original

sentencing hearing. See id. ¶¶ 3-5, 18, 21 (rejecting consideration of an additional prior

DWI that was subsequently discovered after sentencing and presented as a motion to correct

an illegal sentence at the time the defendant only had two months remaining on his original

prison term). Once a DWI offender was sentenced after considering the evidence of any

prior DWI convictions, the prosecution could not introduce new evidence of another

“recently” discovered prior DWI conviction and seek a post-judgment enhancement to a

third degree felony with an additional six-month term of imprisonment. Id. ¶¶ 5, 21.

{8} Defendant relies on Diaz in support of her argument that once she was sentenced and

began to serve her sentence, the district court could not amend and increase her sentence

with another prior conviction that it had previously determined was invalid for purposes of

enhancement. The factual circumstances in Diaz are, however, significantly different than

in this case. In Diaz, the state moved to modify the defendant’s sentence when the defendant

had only two months left to serve of his one-year prison term. Id. ¶¶ 4-5. The motion was

based on the state having “‘recently’ learned of another DWI conviction” that, if factored

into the defendant’s sentence, would have resulted in an additional mandatory six months

of imprisonment. Id. ¶ 5.

{9} It is apparent that this case is both factually and legally distinct from Diaz in four

important ways. First, the timing of the state’s motion in Diaz was considerably late, having

been made at the end of the defendant’s prison term; whereas here, the State acted

expeditiously. Second, in Diaz this Court held that the sentence was legal when it was

imposed; whereas here, we have an illegal sentence. Third, Diaz implicated fairness and

due process concerns, see id. ¶¶ 19-21, to an extent that are not present in this case. The

defendant in Diaz had completed a year-long prison term and had already started to serve

probation when he was faced with the prospect of returning to prison for six additional

months. And fourth, unlike Diaz where the prosecution introduced proof of a “recently”

discovered prior conviction, in the present case, the State moved for reconsideration of

whether the prior convictions introduced at the original sentencing hearing could be used to

enhance Defendant’s sentence as a matter of law and did not introduce any new evidence.

See id. ¶¶ 5, 21. As a result, we are not persuaded that Diaz controls the outcome in this

case.

{10} Increasing a defendant’s sentence after a defendant begins serving the sentence

implicates double jeopardy concerns if a defendant’s objectively reasonable expectations of

finality in the original sentencing proceedings are violated. See March, 109 N.M. at 111,
6

782 P.2d at 83 (reasoning that sentencing implicates double jeopardy concerns if a

defendant’s objectively reasonable expectations of finality are violated); see also State v.

Gaddy, 110 N.M. 120, 122-23, 792 P.2d 1163, 1165-66 (Ct. App. 1990) (concluding that the

defendant’s objectively reasonable expectations of finality were violated by the initiation of

habitual offender proceedings after the defendant had completely served the underlying

sentence). The question here is whether Defendant had an objectively reasonable

expectation of finality that would prevent further legal consideration of the evidence

presented at her original sentencing hearing on November 30, 2009. We conclude that

Defendant had no reasonable expectation of finality under these circumstances and that

double jeopardy did not preclude the modification of Defendant’s sentence based upon a

legal error.

{11} The State has a constitutional right to appeal from a disposition that is contrary to

law. State v. Horton, 2008-NMCA-061, ¶ 1, 144 N.M. 71, 183 P.3d 956. This right includes

appeal of the district court’s legal determinations regarding whether a prior conviction can

be used for enhancement purposes. See State v. Tave, 2007-NMCA-059, ¶¶ 1, 8-10, 141

N.M. 571, 158 P.3d 1014 (concluding that the state was entitled to raise the issue of whether

the district court erred in refusing to enhance the defendant’s sentence as a matter of law for

the first time on appeal). Where the state’s time to exercise its constitutional right to appeal

has not expired, a defendant has no reasonable expectation of finality in his or her sentence.

See State v. Abril, 2003-NMCA-111, ¶¶ 21-23, 134 N.M. 326, 76 P.3d 644 (reasoning that

a defendant has no reasonable expectation of finality where the prosecution’s time to

exercise its constitutional right of appeal has not expired).

{12} Here, the State had a right to appeal the decision of the district court that the 1972

DWI conviction could not be used to enhance the sentence for the current conviction as a

matter of law. Concomitant with that right is the right to ask the district court to reconsider

its decision. See NMSA 1978, § 39-1-1 (1917) (stating that final judgments and decrees

remain under the control of the district court for thirty days and for additional time as

necessary to allow the court to rule upon any motion directed against the judgment that is

filed in that period). Because the State expeditiously sought to have the district court correct

its legal determination that the 1972 DWI conviction could not be used to enhance the

current DWI, Defendant had no reasonable expectation of finality in the sentence entered on

December 3, 2009. Thus, Defendant’s constitutional guarantee against double jeopardy was

not violated when the State expeditiously filed a motion for reconsideration of Defendant’s

sentence on December 9, 2009.

The District Court Did Not Err in Determining That the 1972 Conviction Was Valid

for Purposes of Enhancement

{13} The law is clear in New Mexico “that the use of a prior uncounseled misdemeanor

DWI conviction not resulting in a sentence of imprisonment to enhance a subsequent

misdemeanor DWI conviction does not violate the New Mexico Constitution.” State v.

Woodruff, 1997-NMSC-061, ¶ 37, 124 N.M. 388, 951 P.2d 605. It is undisputed that
7

Defendant’s 1972 DWI conviction was uncounseled. The issue is whether Defendant served

a sentence of imprisonment on that conviction.

{14} The district court conducted four hearings on the matter, taking testimony from

Defendant’s witnesses, examining documents related to the convictions, and hearing

argument of counsel. The evidence established that when Defendant was arrested in 1972

for DWI, she spent some time in jail after her arrest but prior to her conviction on the charge.

It is not clear how much time she spent in jail after her arrest, before she was convicted and

sentenced. The documentation related to the charge was reviewed by the district court but

the actual documents were not made a part of the record. However, the district court’s

review indicated that based on the 1972 DWI conviction Defendant was sentenced to pay

a fine and attend DWI classes. The record showed that she paid some of the fine, but not all

of it. When she failed to pay the fine, a warrant was issued. She was then arrested on a

second DWI. She was ordered to pay a fine on the second DWI, plus the remaining fine

owing from the 1972 conviction. She was also jailed for thirty days for the second DWI.

{15} Defendant makes two arguments on her claim that she was imprisoned on the 1972

DWI conviction. First, she contends that the jail sentence after the second DWI conviction

was imposed because she failed to pay the fine on the 1972 DWI conviction. It is not clear

from the record that the incarceration ordered at the time of the second conviction was

related to the 1972 DWI conviction. There was a great deal of discussion about what the

judge might have been thinking at the time of sentencing on Defendant’s second DWI.

However, there is nothing in the record indicating that the jail sentence for the second DWI

was because Defendant failed to pay the fine on the 1972 DWI conviction. The record

simply shows that Defendant was fined for the 1972 DWI conviction, and she was

incarcerated for the second DWI. As a result, substantial evidence supports the district

court’s determination that Defendant was not sentenced to a term of incarceration as a result

of her 1972 DWI conviction.

{16} Second, Defendant argues that she was in jail before her conviction on the 1972

DWI conviction and that she is entitled to receive pre-sentence confinement credit against

any sentence that is imposed. Therefore, she argues that any sentence imposed as a result

of the 1972 DWI conviction would take into consideration that pre-sentence jail time. As

a result of this pre-sentence jail time and any credit allowed thereunder, Defendant argues

that she was required to receive the advice of counsel prior to being sentenced for the 1972

DWI conviction. We disagree. Defendant appears to assume that the sentence she actually

received for the 1972 DWI conviction did not contain any jail time because she had already

served some pre-sentence jail time and was thereby given credit for time served. There is

nothing in the written record of the 1972 DWI conviction suggesting that Defendant was

given any credit for time served in jail. The only record available reflects that Defendant

was not incarcerated under the 1972 DWI conviction and was only fined. Thus, the premise

of this argument is based on speculation and must fail because it is not supported by the

record herein.
8

{17} Defendant also appears to be arguing that using a misdemeanor DWI to enhance a

crime to a felony DWI does not satisfy the constitution. Defendant does not cite any

authority in support of this argument or explain why using a misdemeanor DWI to enhance

to a felony DWI should be treated differently from using a misdemeanor DWI to enhance

another misdemeanor DWI. Therefore, we do not address the issue. See In re Adoption of

Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). We conclude that the district court

did not err in determining that the 1972 DWI conviction could properly be used to enhance

Defendant’s current DWI conviction because the 1972 DWI conviction resulted in the

imposition of a fine and Defendant was not subjected to jail time for this prior conviction.

CONCLUSION

{18} We conclude that Defendant did not have a reasonable expectation that the sentence

she received on December 3, 2009, was final. Therefore, the district court could have

properly reconsidered her sentence and increase this sentence due to a legal error made by

the district court at the original sentencing hearing. Further, the district court did not err in

determining that Defendant’s 1972 DWI conviction could be used to enhance her current

DWI to a fourth DWI conviction. We affirm the amended judgment and sentence imposed

by the district court.

{19} IT IS SO ORDERED.

____________________________________

TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

MICHAEL E. VIGIL, Judge

Topic Index for State v. Redhouse, No. 30,386

AE APPEAL AND ERROR

AE-SR Standard of Review 

CT CONSTITUTIONAL LAW

CT-DJ Double Jeopardy

CL CRIMINAL LAW

CL-DB Driving While Intoxicated
9

CA CRIMINAL PROCEDURE

CA-DJ Double Jeopardy

CA-ES Enhancement of Sentence

CA-FO Final Order

CA-JS Judgment and Sentence